New York Law School

Art Leonard Observations

Posts Tagged ‘Henderson v. Adams’

Unanimous Federal Appeals Court Rules Indiana Must List Lesbian Mothers on Birth Certificates

Posted on: January 20th, 2020 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit ruled on January 17, 2020, in Henderson v. Box, 2020 U.S. App. LEXIS 1559, 2019 WL 255305, that the state of Indiana must recognize the same-sex spouses of women who give birth as mothers, who should be listed on the birth certificates for their children.  Judge Frank Easterbrook wrote the opinion for the court.

The timing of this appeal made the outcome unsurprising.  In June and December 2016, District Judge Tanya Walton Pratt issued rulings in this case, ultimately holding unconstitutional various Indiana statutes upon which the state relied in refusing to list the same-sex spouses on their children’s birth certificates.  See Henderson v. Adams, 209 F. Supp. 3d 1059 (S.D. Ind., June 30, 2016); Henderson v. Adams, 2016 U.S. App. LEXIS 180330, 2016 WL 7492478 (S.D. Ind., Dec. 30, 2016).  Judge Pratt relied on her reading of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which ruled that same-sex couples have a right to marry and their marriages must be treated the same for all purposes as the marriages of different-sex couples.  Just six months after Judge Pratt’s last ruling, the U.S. Supreme Court stated the same conclusion in Pavan v. Smith, 137 S. Ct. 2075 (2017), ruling that Arkansas could not refuse to list such parents on birth certificates.

In light of the Pavan ruling, one would have thought that Indiana would desist from appealing Judge Pratt’s ruling to the 7th Circuit.  But the state’s lawyers insisted that the state had a right to make the initial birth certificate of a child a record solely of the biological parents of the child, so long as they would allow same-sex spouses to seek an amended birth certificate at a later date.  Judge Pratt had rejected this argument, and the Supreme Court’s Pavan ruling vindicated her reading of the Obergefell decision’s implications for birth certificates.

Describing Judge Pratt’s first ruling, issued on June 30, 2016, Judge Easterbrook wrote, “The district court issued an injunction requiring Indiana to treat children born into female-female marriages as having two female parents, who under the injunction must be listed on the birth certificate.  Because Indiana lists only two parents on a birth certificate, this effectively prevents the state from treating as a parent a man who provided the sperm, while it requires the identification as parent of one spouse who provided neither sperm nor egg.”  Pratt concluded that this was required by Obergefell, which, Easterbrook noted, was confirmed by the Supreme Court in Pavan.

Indiana argued on this appeal that “Obergefell and Pavan do not control,” explained Easterbrook.  “In its view, birth certificates in Indiana follow biology rather than marital status.  The state insists that a wife in an opposite-sex marriage who conceives a child through artificial insemination must identify, as the father, not her husband but the sperm donor.”

By contrast, the plaintiffs argued that Indiana’s statute is status-based, not based on biology, and in fact heterosexually-married women who give birth to children conceived through donor insemination routinely designate their husbands, contrary to Indiana’s rather strange argument that the worksheet the women are given to complete in order to get the birth certificate is intended to elicit the identity of the child’s biological father – in that case, the sperm donor.  Mothers are asked to name the “father” of their child, and the state contended that this means they should be listing the sperm donor if the child was conceived through donor insemination.

That the argument is complete nonsense certainly did not help the state’s case.  Indeed, the semantic games that attorneys from the Office of the Attorney General were playing makes for a curious opinion by Easterbrook, whose tone projects some bemusement.  “The district judge thought the state’s account of mothers’ behavior to be implausible,” he wrote.  “Some mothers filling in the form may think that ‘husband’ and ‘father’ mean the same thing.  Others may name their husbands for social reasons, no matter what the form tells them to do.  Indiana contends that it is not responsible for private decisions, and that may well be so – but it is responsible for the text of Indiana Code Section 31-14-7-1(1), which establishes a presumption that applies to opposite-sex marriages but not same-sex marriages.”  This is the presumption that the husband of a married woman who gives birth is the father of her child.  “Opposite-sex couples can have their names on children’s birth certificates without going through adoption; same-sex couples cannot.  Nothing about the birth worksheet changes that rule.”

The state argued that of course the same-sex spouse can then adopt the child and be listed on an amended birth certificate.  Thus, the same-sex couple will have a birth certificate naming both of them, and the state will retain on file the original birth certificate documenting the child’s biological parentage.  But why should a married same-sex couple, entitled under the Constitution to have their marriage treated the same as a different-sex marriage, have to go through an adoption to get a proper birth certificate?

The lawsuit also sought the trial court’s declaration that the children of the two couples who brought the suit were born “in wedlock,” not “out of wedlock” as a literal interpretation of the state’s statutes would hold.  Yet again, the state’s insistence on perpetuating the former legal regime was rejected.

Judge Easterbrook identified another way that the statutes on the books fail to account for reality. What if the child of a same-sex female couple has two “biological” mothers?  Easterbrook observed that “Indiana’s current statutory system fails to acknowledge the possibility that the wife of a birth mother also is a biological mother.  One set of plaintiffs in this suit shows this.  Lisa Philips-Stackman is the birth mother of L.J.P.-S., but Jackie Philips-Stackman, Lisa’s wife, was the egg donor.  Thus Jackie is both L.J.P.-S.’s biological mother and the spouse of L.J.P.-S.’s birth mother.  There is also a third biological parent (the sperm donor), but Indiana limits to two the number of parents it will record.”

“We agree with the district court,” wrote Easterbrook, “that, after Obergefell and Pavan, a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages.”  Because the current statute does that, he continued, “its operation was properly enjoined.”

However, the court of appeals found that Judge Pratt went too far when she declared that all the relevant statutory provisions are invalid in their entirety and forbade their operation “across the board,” because “some parts of these statutes have a proper application.”  For example, the provision that allows for somebody who is not a husband to the birth mother to be identified as the biological father as a result of genetic testing, and, for another example, the provision that “provides that a child is born in wedlock if the parents attempted to marry each other but a technical defect prevented the marriage from being valid.”  Easterbrook asserted that neither of these provisions violated the constitution.  “A remedy must not be broader than the legal justification for its entry, so the order in this suit must be revised,” he wrote.

“The district court’s order requiring Indiana to recognize the children of these plaintiffs as legitimate children, born in wedlock, and to identify both wives in each union as parents, is affirmed,” the court concluded.  “The injunction and declaratory judgment are affirmed to the extent they provide that the presumption in Indiana Code Sec. 31-14-7-1(1) violates the Constitution.”

Circuit Judge Easterbrook was appointed by Ronald Reagan, as was Judge Joel Flaum.  The third judge on the panel, Diane Sykes, was appointed by George W. Bush.  Thus, the ruling is the work of a panel consisting entirely of judicial conservatives appointed by Republican presidents.  The clear holding of Pavan v. Smith was such that they could not honestly rule otherwise, regardless of their personal views about same-sex marriage and parentage.  After all, in Pavan the Supreme Court rejected exactly the same arguments that Indiana was making in this case.

Attorneys for the plaintiffs include Karen Celestino-Horseman, Raymond L. Faust, Megan L. Gehring, Richard Andrew Mann, and William R. Groth, all practicing in Indianapolis in several different law firms.  Amicus briefs were filed for a variety of groups by pro bono attorneys from Chicago, San Francisco, and Washington, D.C., representing the Family Equality Council, the National Center for Lesbian Rights, and 49 Professors of Family Law.

Federal Judge Orders Indiana to List Two Moms on Birth Certificates

Posted on: July 1st, 2016 by Art Leonard No Comments

U.S. District Judge Tanya Walton Pratt ruled on June 30 that Indiana was failing to comply with the Supreme Court’s mandate for marriage equality in Obergefell v. Hodges, decided last June 26, when the state refused to list the same-sex spouses of birth mothers on their children’s birth certificates.  Ruling on cases brought by several same-sex couples who were married before their children were born, Judge Pratt found that the mandate to afford equal marriage rights to same-sex couples included a requirement that the “parental presumption” applied to husbands of women who give birth should also be applied to their wives.  Henderson v. Adams, 2016 U.S. Dist. LEXIS 84916 (S.D. Ind.).

Judge Pratt explained that the usual procedure in Indiana for issuing birth certificates starts when hospital staff “work with the birth mother to complete the State of Indiana’s ‘Certificate of Live Birth Worksheet,’” which was created by the state as part of its Birth Registration System.  “Staff at the hospital upload the information provided on the Indiana Birth Worksheet to a State database.  The county health department then receives notification that birth information has been added to the database.  A notification letter to the birth mother is generated on a form provided by the State, which indicates that information has been received by the county health department and requests that the mother notify the county health department if there is an error with respect to the child’s identifying information.”  If the mother wants a birth certificate, she has to request one, which will then be generated out of the database.

One of the questions on the Worksheet is whether the birth mother is married.  If she answers “no,” she is asked whether a paternity affidavit has been completed for the child, in which case the person identified as the father will go into the database and be listed on the birth certificate.  If there has been no affidavit, then the space is left blank, even if the mother knows the identity of the child’s biological father, and the birth certificate will list only the mother.  If the answer is “yes,” the husband’s name will go into the database, and ultimately will be listed on the birth certificate.  Even if the child of a married couple is conceived with donated sperm, there is a presumption that the husband is the father, unless the mother takes steps during this initial information-gathering process to make clear that her husband is not the biological father.

Even though all of the plaintiff couples in this case are married, the state refused to accept same-sex spouses into the database or to list them on the birth certificate.  The state’s position was that the database and the birth certificates generated from it are supposed to create a true record of the biological parentage of the child, and that because a same-sex spouse of a birth mother is not biologically related to the child, listing her in the database and on the birth certificate would create a false record.  The state took the position that a same-sex spouse could only be listed in the database and the birth certificate if she adopted the child with the permission of the birth mother, a process involving expenses and delay, during which time the child would have only one legal parent.

Judge Pratt accepted the plaintiffs’ argument that “Indiana’s refusal to grant the status of parenthood to female spouses of artificially-inseminated birth mothers while granting the status of parenthood to male spouses of artificially-inseminated birth mother violates the Equal Protection Clause,” because it was sex discrimination, pure and simple.

Furthermore, sex discrimination requires heightened scrutiny, putting the burden on the state to justify its policy and show that it advances an important state interest.  Because the state presumes, without proof, that the husbands of birth mothers are the parents of their children, the policy does not, in fact, advance the state’s asserted interest of creating a “true” record of the child’s biological parents.  The state argued that it was the duty of the married birth mother to advise hospital staff while completing the Worksheet if her child was conceived through donor sperm so that her husband’s name would be excluded from the database, but this was clearly a spurious argument, since the Worksheet does not prompt hospital staff members to ask this question.

“The State Defendant’s argument that the birth mother should acknowledge that she is not married to the father of her child when she has been artificially inseminated or else she is committing fraud when she has been artificially inseminated is not consistent with the Indiana Birth Worksheet, Indiana law, or common sense,” wrote Judge Pratt.  “The Indiana Birth Worksheet asks, ‘are you married to the father of your child,’ yet it does not define ‘father.’  This term can mean different things to different women.  Common sense says that an artificially-inseminated woman married to a man who has joined in the decision for this method of conception, and who intends to treat the child as his own, would indicate that she is married to the father of her child.  Why would she indicate otherwise?”

Judge Pratt pointed out that the Worksheet, devised by the state, made no attempt to elicit the information that the State deemed to be so important, and, furthermore, “there is no warning of fraud or criminal liability.”  She pointed out that some other states had enacted specific statutory language to deal with the use of donor insemination by married couples and the issuance of appropriate birth certificates, but Indiana has failed to do so.  She pointed out, however, that in one such state, Wisconsin, litigation is pending because that state has also been refusing to list same-sex spouses on birth certificates.

Ultimately, she pointed out, the Worksheet process as set up by the state did not achieve its articulated purpose of creating a “true” record of biological parents, and was administered in a way that clearly discriminated against same-sex couples.  Rejecting the state’s argument that employing a parental presumption was not required under Obergefell’s mandate of equal marriage benefits, she pointed out, “the state created a benefit for married women based on their marriage to a man, which allows them to name their husband on their child’s birth certificate even when the husband is not the biological father.  Because of Baskin [the 7th Circuit’s marriage equality ruling] and Obergefell, this benefit –which is directly tied to marriage – must now be afforded to women married to women.”

In addition to finding an equal protection violation, Judge Pratt found a Due Process violation because in Obergefell the Supreme Court referred to both clauses of the 14th Amendment as a source of the freedom to marry.  Since the Supreme Court identified that freedom as a fundamental right, strict scrutiny would apply, and the state’s rationale for its position of this case was obviously insufficient to meet the “compelling interest” test, and Judge Pratt so found.  The judge concluded: “Given Indiana’s long-articulated interest in doing what is in the best interest of the child and given that the Indiana Legislature has stated the purpose of Title 31 is to protect, promote, and preserve Indiana families, there is no conceivable important governmental interest that would justify the different treatment for female spouses of artificially-inseminated birth mothers from the male spouses of artificially-inseminated birth mothers.  As other district courts have noted, the holding of Obergefell will inevitably require ‘sweeping change’ by extending to same-sex married couples all benefits afforded to opposite-sex married couples.  Those benefits must logically and reasonably include the recognition sought by Plaintiffs in this action.”